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The Rights of Nature (Rivers) and Constitutional Actions in Colombia

By Héctor Herrera-Santoyo[1]

In this blog, I synthesize the cases that have protected the rights of rivers in Colombia, first summarizing the two main constitutional actions used in these cases. I finish with some conclusions.

“Acción de Tutela”

This legal action was created by the Colombian Constitution of 1991 and is applicable to protecting fundamental constitutional rights. About its relevance for protecting the right to a healthy environment, the Constitutional Court of Colombia, the highest Court in the Constitutional jurisdiction, ruled in Judgment T-341 of 2016:

Since the promulgation of the Political Constitution of 1991, the protection of the environment occupies a significant place in the Colombian legal system. From this perspective, this Court has recognized the ecological nature of the Constitution, the fundamental spirit of the right to a healthy environment and its connection with the fundamental rights to life and health, among others, which imposes correlated duties on the State and on the inhabitants of the national territory.”[2]

Compared to other legal actions, a “tutela” does not require a lawyer, has much simpler procedures and gets processed expeditiously.

Popular Action

Popular actions are enshrined in the Constitution and are intended for the protection of collective rights and interests related to the environment and public health, among others. The popular action was stipulated in Law 472 of 1998. Article 4 contains a non-exhaustive list of collective rights and interests that can be protected with this legal action for the public interest. Among them are the enjoyment of a healthy environment, the existence of ecological balance and access to public services. The purpose of the popular action is to halt a danger or threat to or violation of collective rights and restore things to their previous state when possible.

The Atrato River Case (2016)

Given the serious pollution caused by mining on the Atrato River in the Colombian Pacific, the ancestral territory of Afro-Colombian and indigenous communities, in 2015 the organization Tierra Digna, representing several Afro-Colombian communities, filed an “acción de tutela” before the Administrative Court of Cundinamarca, which declared it inadmissible. On second instance the Council of State also declared the legal action inadmissible.

Finally, the Constitutional Court reviewed the case and granted the protection through Judgement T-622 of 2016. Among other protections, this judgement ordered: protection of the rights to life, health, water, food security, a healthy environment, culture and territory for the actors; the design and execution of a plan to decontaminate the basins of the Atrato River; an action plan to definitively eradicate illegal mining in the region, and; a socio-ecological evaluation of the impacts of mining.

Specifically, on the rights of nature, the Court ordered: “RECOGNITION of the Atrato River, its basin, and tributaries as an entity subject to rights of protection, conservation, maintenance and restoration by the State and ethnic communities.” As a result, a government representative and community representative were put in charge of the legal representation of the river’s rights, making them “the guardians of the river.”[3]

The Coello, Combeima, and Cocora Rivers case (2019)

This popular action was interposed by the local Ombudsman of the central-western province of Tolima, Colombia to protect the collective rights of the inhabitants of these areas in the face of mining.

In June 2019, the Regional Court of the Province of Tolima recognized rights to three rivers: “It establishes the recognition of the Coello, Combeima, and Cocora rivers, their basins, and tributaries as individual entities, subject to rights of protection, conservation, maintenance and restoration by the State and the communities.” This ruling also ordered a mining stoppage in these rivers and also declared the shared responsibility of mining companies for environmental impacts.[4]

Cauca River case (2019)

Senator Juan Luis Castro and activist Diego David Ochoa filed an “acción de tutela” in response to the serious environmental situation of the Cauca River, one of the most important in Colombia.

In 2019, the Superior Court of Medellín recognized the Cauca River, its basin, and its tributaries as a subject of rights and ordered their protection, conservation, and maintenance by the State and Public Companies of Medellín (EPM in Spanish). EPM is building the largest hydroelectric plant in Colombia on the Cauca River. Similarly, it “recognized that future generations are subject to special protection and, as such, the protection of their fundamental rights to dignity, water, food security, and a healthy environment are granted in their favor.”[5] This case shows that not only is mining a threat to the rivers of Colombia, but also hydroelectric projects causing social and environmental impacts. Currently, the energy grid of Colombia relies mostly on hydro energy.

Conclusions

In Colombia, a judicial precedent for the rights of nature has been consolidated and is likely to be developed further by future decisions both in the highest Courts and local Tribunals. The judgments of the Constitutional Court are especially important in a context where the rest of the world is also advancing in the recognition of the rights of nature, such as is the case with the Vilcabamba River case in Ecuador (2011), the Te Awa Tupua (Whanganui River) law in New Zeeland (2017), and the Ganges and Yamuna Rivers case in India (2017).[6]

In Colombia’s case, there are several challenges in materializing this type of judicial order and guaranteeing these rights, including the implementation of judicial orders for the protection of rivers and other ecosystems subject to rights amidst a complex context of conflicts and weak institutions, the implementation of complex judicial orders that involve the protection of the rights of future generations, and a lack of clarity about which communities and institutions should assume legal representation for the purpose of daily procedural activities in the name of nature.

[1] GNHRE Deputy Regional Director for Latin America and Coordinator in the Observatory for Marine and Coastal Governance (Colombia)

[2] Constitutional Court of Colombia. Judgment T-341 of 2016. Available in Spanish at this link.

[3] The Dignity Rights Project translated the entire Atrato River Judgment into English, available at this link.  For an academic analysis of the case, consult the chapter, “Implementing Environmental Constitutionalism in Colombia,” published in 2018 and available at this link.

[4] More information about this case in Spanish can be found at this link.

[5] A broader context of the situation and the complete Judgment in Spanish can be consulted at this link.

[6] Mesa Cuadros, Gregorio (ed.) (2019) Environmental Standard and Environmental Rights in post-peace agreements: some case studies. Bogotá: National University of Colombia, Unijus, Chapter 1, pp. 25-51.

Featured image: Atrato River, Chocó, Colombia (Wikimedia).

Astrid Milena Bernal

By Astrid Milena Bernal

Astrid Milena Bernal Rubio is a Colombian LL.M student at Pennsylvania State University (concentrations in International Law and Energy and Environmental Law). She is a lawyer from the Universidad Católica de Colombia, Magister in Environmental Law from the Complutense University of Madrid and Specialist in human rights and critical legal studies from the Latin American Council of Social Sciences (CLACSO) Latin American School of Public Policy- ELAP.

As part of the technical team of GFLAC (climate finance group for Latin America and the Caribbean), she supported the creation of the MRV system (monitoring, reporting and verification) for climate finance in Colombia. In addition, she has been a consultant for the WRI (World Resources Institute) and The Access Initiative (TAI), working as the National researcher for the Environmental Democracy Index (EDI). Also, she has worked as a consultant for AVINA Foundation, The Bogotá’s drainage and sewerage company (EAAB). She has worked as a lawyer and researcher on issues associated with public participation, access to information, forests, carbon markets, rights of indigenous peoples and rural communities in Colombia.

Astrid was a volunteer for the Network for Environmental Justice in Colombia and promoted the creation and growth of the climate justice division at the Environment and Society Association (AAS) of Colombia. She worked as the Climate Justice division coordinator for five years. Astrid was a senior research coordinator in a joint research project with UNICEF to contribute to the fulfilment of the SDGs (6), focusing its work on guaranteeing the rights of access to sanitation for rural, indigenous and Afro-descendant populations in Colombia. She is also part of the founders of the Colombian NGO- CAMBIUM (Climate, Environment and Research-Action Uniting Worlds). This organization aims to, directly and indirectly, influence processes carried out by civil society and decision-makers related to climate change.

Currently, she works at the Global Forest Coalition as an associate for the Unsustainable Livestock Campaign. Astrid also supports the work of Pivot Point and the CLARA group (Climate, Land, Ambition and Rights Alliance), promoting the understanding and participation of CSOs to ensure higher ambition of NDC (Nationally Determined Contributions) in Spanish speakers countries.

Astrid is a research assistant at Penn State University identifying how different kinds of transboundary river basin organizations have written and used dispute resolution mechanisms in both the bilateral agreements between the US, Mexico and Canada (NAFTA-USMCA) and the Autonomous Binational Authority of the Basin of Lake Titicaca (Bolivia, Peru).

Astrid is member of the core team in the Global Network for Human Rights and the Environment (GNHRE), she is part of the global network of environmental lawyers (ELAW) and collaborates as a volunteer for The Capital Area Immigrants’ Rights Coalition- CAIR coalition.